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A few weeks ago, on our way to watch the Texas Rangers play the Oakland A’s, my middle son saw a billboard sign that read: “Would Jesus Discriminate?” and in the lower left corner, it read: “WhyWouldWe.org.” I did not see the billboard at first but it did start an interesting conversation amongst my three sons and me on our way into the ballpark.  On our way to Cowboy Stadium (yes it is as nice as every says it is) to see the Dallas Cowboys on Monday Night Football, I finally saw the billboard and it once again sparked a discussion between my middle son and I.  My sons know that I represent individuals against workplace discrimination. 

After the intellectual discussion with my sons, I had to visit the website.  The website promotes a campaign that prompts the question and initiates the dialog around the question: "Would Jesus discriminate?" I believe that many of us would answer that question with a resounding “NO!”   After visiting the site, it certainly brought my attention to the Employment Non-Discrimination Act (ENDA), a  proposed bill in the United States Congress that would prohibit discrimination against employees on the basis of sexual orientation, gender identity, and disability for civilian nonreligious employers.

ENDA has been introduced in every Congress since 1994 to no avail. This year, on the heels of the 2008 elections, an inclusive ENDA has been introduced by House representative Barney Frank and President Barack Obama supports the bill's passage. Hearings on the bill were heard on September 23, 2009. As an plaintiff’s employment lawyer, I find it hard to believe why such a law has not yet been passed or why sexual orientation is not a protected class. 

Currently, employees are unable to find protection in the judicial system because sexual orientation is not considered to be a suspect class by the federal courts and by many US states.

It is worth noting that much of the media discussion on this bill is factually incorrect.  For example, many Christian organization are reporting that the US Senate has renewed their push to grant special rights for homosexuals in the workplace."  Scare tactics.

In reality, the bill would give no more rights to persons with a homosexual orientation than it would to a person with a heterosexual or bisexual orientation.  A heterosexual who was refused a job as a bartender in a gay bar on the basis of his sexual orientation could sue just as a homosexual could sue if she or he were refused a manufacturing job on the basis of their sexual orientation. If gays and lesbians receive "special rights" because of this bill, then heterosexuals and bisexuals would receive those same "special rights;" therefore, making them universal rights. What is wrong with that? 

For a great discussion of the proposed bill in which all the fear tactics are disputed, I suggest that you read the Transgender Workplace Blog authored by Prof. Jillian Weiss.  Prof. Weiss has tackled every fear tactic imaginable that has been discussed as opposition for the ENDA - bathroom fears, increased lawsuits, pedophilia, loss of religious freedom, etc.  Each day I check her blog she is tackling every possible argument against the proposed law.  Great Work Professor! 

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The Department of Homeland Security (DHS) anncounced and published in today’s Federal Register a final rule rescinding the controversial “no-match” rule implemented in 2007.  The rule was enjoined by a lawsuit filed in 2007 and therefore never actually implemented.  The intent of the original rule was to create safe harbor procedures for employers that receive no-match letters from the Social Security Administration or notice of suspect documents letters from the Immigration and Customs Enforcement (ICE) regarding their employees’ authorization to work in this country.

The rule would have required that no-match letters be accompanied by a set of procedures for employers to follow to address any identification discrepancies.  If the procedures were followed, an employer could avoid a finding that it had constructive knowledge of a worker’s illegal status and avoid incurring civil and criminal liability under the Immigration Reform and Control Act of 1986.

According to DHS, the agency will now focus its resources on alternative programs to reduce unauthorized employment, including E-Verify and ICE Mutual Agreement Between Government and Employers (IMAGE), among other programs.

The final rule is effective November 6, 2009.

I have written previously about our country's immigration laws.  The past practice has been to criminalize the immigrant and not the employer.  The new rule shift the goverment's focus to the correct area - holding the employer liable and accountable for hiring an undocumented worker. 

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MSNBC.com has an interesting article out this week called "Where ‘omg, u look gr8’ can land you in court." The article reviews sexual harassment in the modern workplace.  I have previously blogged about MySpace, Facebook, and Twitter as it relates to work conduct.  The quote I found most interesting in the article was about social networking sites. 

"Sites like this [Facebook and MySpace] can become fertile ground for someones fantasy life," says Rick Brenner, a management consultant and workplace politics expert in Cambridge, MA.  "If you're trying to maintain a professional stance at work and don't want any entanglements, be careful about what you put up." Innocent vacation photos of you in your bikini may unwittingly draw unwanted attention at work.

Brenner recommends having separate profiles for professional and personal contacts, or just sticking to a professional site like LinkedIn for your work colleagues.

I agree with his statement.  Sometimes, often unfairly, how an employee presents herself  or himself at work may lead to unwanted sexual advances or environments at work.  Much of the problem is that newer technology — e-mail, IM, texting or posting on social-networking sites — makes it much easier for comments to be misconstrued on many levels.

Although the article references that the times of direct quid-pro-quo sexual harassment is almost non-existent (which I do not agree with), it does reference the issue of office affairs.  Office affairs are very common and the fallout after the office fling is over is where I see many sexual harassment clients coming through my door.  When an office affairs ends, it is hard to change the relationship back to a professional level.  More often than not, a sexual harassment claim will follow. 

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The federal minimum wage will rise from the current $6.55 per hour to $7.25 per hour, effective July 24, 2009.  

This will be the final minimum wage increase under the law passed in 2007, the Fair Minimum Wage Act of 2007.  

For additional information, see the DOL's Compliance Assistance Page. 

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A fellow blogger and Plaintiff’s employment lawyer, Tom Crane, at www.SanAntonioEmploymentLawBlog.com, recently posted a blog entry about finding and securing a Plaintiff’s Employment Lawyer. I thought I would weigh in on the same issue from a Dallas perspective and my personal experiences.

Because this blog is so popular, I receive numerous inquiries daily from prospective clients. Sadly, I cannot help many of the prospective clients because they have come to me way too late.
It is hard to find a Plaintiff’s employment lawyer here in Dallas and throughout North Texas. There is only a handful that practice in this area exclusively. Why is that so?  See more after the jump. 

Over the past year and half, here are some of my basic observations and pointers for potential clients when looking for a lawyer:

• The Clock is Ticking: Do not call at the last minute or close to the last minute. There are strict deadlines related to employment cases. As a prospective client, if you present me a potential case too close to the deadline, I am more inclined to decline representing you. What is the most important deadline that I consider?
  • Answer: Has more than 180 days passed since you were terminated (or some other adverse action) before filing a claim with the EEOC? If so, you have missed the deadline to bring a claim in state court, a more favorable venue than federal court. 
  • Answer 2: How many days remain before your right to sue letter expires? You cannot expect a lawyer to file a suit in a matter of days without doing the proper research and analysis of your case. 
    • EEOC Charge Filing Procedures
    • TWC - Civil Rights Division Charge Filing Procedures
• Flying Solo before Calling a Lawyer: Did you file your Charge of Discrimination on your own? Many times, I see what would be good case, but a potential client went to the EEOC before seeing a lawyer. Why is that a problem?
  • Answer: It is imperative that the Charge include specific information and certain boxes are checked. If the Charge is weak or faulty, your case will be weak and have faults. If you walk out of the EEOC office with a charge that is one page, you most likely have a faulty charge. 
  • Note: If you took the requisite time to locate a lawyer before going to the EEOC (which in my case – you have 180 days), you would have an extra 90 days to locate a qualified lawyer. Going solo gives you only 90 days after the Right to Sue has been issued. Even if you did not meet the deadline to bring a state claim, you have 300 days to go to the EEOC. Please take the time to find a lawyer before going to the agencies.
• Investigations (or lack thereof): Most people going to the EEOC believe the agency will conduct an investigation and help them resolve their matter. Not true!
  • No or Little Investigation: In Dallas, the EEOC Office is overworked and understaffed. Many times, a potential client goes to the office, files their charge and they are immediately issued a Right to Sue Letter. No investigation completed. Now you need to go find a lawyer. 
  • Wasted Time: I hear how potential clients have waited hours to see an intake investigator. If you arrive late in the afternoon, you will not be seen. 
• Finding the right lawyer: There are far more potential plaintiffs than there are qualified lawyers able to handle such cases. It is hard to find a plaintiff employment lawyer. Where should you start looking?
  • NELA – The National Employment Lawyers Association. NELA is an exclusive organization focused on Plaintiff’s employment law. At a minimum, I suggest that if you do not know a lawyer personally, that you at least start your search with NELA.
  • Referrals: If you know any lawyer, immediately ask that lawyer for employment law referrals. Who cares if they are lawyers that represent management and companies exclusively, the defense lawyers know the best Plaintiff’s lawyers that they go up against. Many of my best referrals are from the defense bar. 
• Cost of Litigation: The sooner you find a lawyer after your termination (or other adverse action), the more likely you will find a lawyer to take your case on a pure contingency basis. The later you get into the process, the more likely you will be paying a large retainer to cover cost.
  • Unreasonable Expectations. A potential client cannot expect a lawyer to take a case at the last minute and bankroll the whole thing when there are potential pitfalls that were avoidable if the lawyer was engaged in the process earlier.

I am sure that I am missing some points. These are the best ones that I can think of now. Maybe this will start a discussion. 

Moral of the story:  Find an employment laywer immediately, even before termination if possible. 

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Judge Sonia Sotomayor of the U.S. Second Circuit of Appeals has been appointed by President Obama as the Supreme Court appointee to replace Judge David Souter, who is retiring this year. Judge Sotomayor is certainly an accomplished woman with an inspiring true story.  She rose from the Bronx housing projects to Supreme Court nominee.  As a lawyer she helped save Major League Baseball after the 1994 strike when she ended a baseball strike that prevented a World Series form occuring that year.  She ruled against the owners in favor of the players.  Now she is making history as President Obama's choice for Supreme Court justice.  Most importantly, in my opinion, she is the first Latino (which makes her the first Latina) ever selected for the job, and she may soon be the third woman ever selected and confirmed for the job. 

Congratulations to Judge Sotomayor.  Besides her personal success story, she is a compelling nominee and a good judge.  The New York Times recently ran an article detailing her success story - which took her from the housing projects of the South Bronx to Princeton, Yale Law School, the New York District Attorney's office, private practice, the federal judicial post for the Southern District of New York, the U.S. Second Circuit of Appeals, and now the U.S. Supreme Court. It certainly will not hurt her confirmation prospects that she (1) would be the first Hispanic justice, (2) the third women, and (3) was appointed to the federal district court by 41 - the first President Bush. 

Of course since this a plaintiff’s-based employment blog, we must discuss civil rights and discrimination. 

• So the only potential roadblock for her may her significant involvement in a controversial Ricci v. DeStefano, a reverse-affirmative action case involving a suit by white and Hispanic firefighters passed over for promotion when a city declined to implement the results of a promotion test upon which black firefighters performed disproportionately poorly.  See here for the case's history.  Sitting on the Second Circuit’s three-judge panel, Sotomayor affirmed the lower court’s judgment finding that the city was justified in disregarding the test results.
• In Parker v. Columbia Pictures, Sotomayor applied Title VII’s “mixed motive” analysis to the Americans with Disabilities Act (ADA).
• In two other disability discrimination cases where the Second Circuit majority held for the employer – EEOC v. J.B. Hunt Transportation Inc. and Nielson v. Colgate-Palmolive – Sotomayor issued dissents explaining her belief that the plaintiffs had indeed made out prima facie cases of discrimination.
• In Malesko v. Correctional Services Corp., she ruled that an inmate serving time in a halfway house operated on behalf of the Bureau of Prisons by a private corporation could sue that private corporation and its employees for violations of his constitutional rights, a decision that was subsequently reversed by the Supreme Court.
• Sotomayor has also sided with the plaintiff in two hostile environment and at least one suit involving employer retaliation.

While not all of her decisions have favored the plaintiffs in employment cases, her opinions indicate that she is more apt to interpret employment laws in favor of the employee.

I seriously doubt that her judicial decision in any case is big enough to derail her history-making nomination. 

Congratulations, Judge Sotomayor!

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Por fin is Spanish for "finally."    With the swine flu affecting Mexico, there is great news from our nation's capital!  Here is another reason to celebrate Cinco de Mayo. 

Yesterday, The Supreme Court issued an opinion in Flores-Figueroa v. United States, a case involving a federal identity theft statute used to prosecute undocumented immigrants. It was a slam dunk! The Supreme Court ruled 9-0 against the government.  

This case will have significant effects on immigration enforcement and curb the threats used by Immigration and Customs Enforcement (ICE f/k/a INS or Immigration and Natural Services a/k/a La Migra) raids.

In the case, a worker gave his employer a false name, birth date, and Social Security number, along with a counterfeit alien registration card. The Social Security number and the number on the alien registration card were not those of a real person.

Six years later, the same worker gave his employer new counterfeit Social Security and alien registration cards.  This time, the numbers on both cards were those of a real person.  His crime: entering the U.S. without inspection, misusing immigration documents, and aggravated identity theft (knowingly using someone else's documents), which carried the mandatory two-year prison sentence.

The Court ruled that the worker had to know that the cards actually belonged to a real person to be guilty of aggravated identity theft.  A worker will know that the cards did not belong to him but will not know whether the numbers on the cards are completely fake or belong to a real person.

For years, the chief punishment for immigrants caught working without proper documentation in the United States has been deportation and that is a proper and just remedy or punishment.  I do not dispute that.  However, recently the government used criminal charges which brought a hefty prison sentence.  After immigrant rights groups and some members of Congress challenged the practice, the law is now not effective for this purpose. 

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"Last week I announced plans for a national immunization program to inoculate Americans against a swine-type influenza virus.  Because of the serious nature of this virus, it is my hope that every man, woman, and child in the country can be inoculated before the end of the calendar year."
 

President Gerald R. Ford, “Memorandum on a National Swine Flu Immunization Program,” April 1, 1976.

You read that right - President Ford over 30 years ago. 

All the latest news predicts a serious threat (or overblown panic??) on the prospect of a pandemic flu, known as the Swine Flu, appearing frequently in the United States.   This threat is hitting close to home -- in Dallas and throughout Texas. For example:

• A Richardson ISD (Dallas suburb) elementary school closed for the week (during TAKS week!) , 
• all Texas UIL high school sports, including the start of the baseball and softball tournament this weekend are delayed until May 11. 
• a whole school district in San Antonio has closed for the week,
• a high school in San Antonio has also closed. 

This list goes on and on.  When I started drafting this blog post, the preceding points were the beginning of the panic.  For an updated list of school closings and other delays, see the Texas Education Agency's website here. You can track the spread nationally on Google's Swine Flu Tracker. 

What does any of this have to do with employee rights and employment law?  I was asked that question recently.  Answer:  EVERYTHING.  Surprisingly enough (as far as I know), there are no reported closing of businesses.  I would not be surprised if we will hear about one soon and maybe the first will be in New York  - an Ernst & Young employee has swine flu.

What will happen over the next few weeks and months is unknown .  Add a poor economy to the equation and a disaster is waiting to happen.  As companies are cutting back on paid sick leave and other benefits, most employees can not afford to take an extended period of time off without pay and certainly cannot afford to loose their jobs. 

Many small business do not have a formal sick leave policy or have a limited one. According to a poll taken last year by the Small Business Digest:

• Only 53% of respondents said they had a written policy that limited sick days (the average was 2.3 days per year.)
• 41% said they had no such policy, but are flexible.
• 8% said that non-exempt employees were docked for sick days.

As an employee, here are a few pointers that you should also be aware of :

• your company's personal time off policy in the event you are not ill nor a family member, but your child's school has closed down and you must now seek child care,
• you should be extra careful of yours and yours family health,
• the Family Medical Leave Act (FMLA) provides up to 90 days of unpaid leave to employees for serious medical conditions (for employees and their immediate family members) (Note: this law only applies if you employer has over 50 employees and you have worked at least a year),
• your company's call in policy - make a call as soon as you know you need the time off.  Do not delay, and
• seek medical assistance immediately so you can provide the necessary documentation to your employer verifying your need to take leave. 

Want to read more from other bloggers or government documents, see more after the jump.

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An ethnic or racial stereotypes is a generalized representation of an ethnic or racial group composed of what are thought to be typical characteristics of members of that group.  The key word in that definition = "THOUGHT." 

What people think about or experience with certain groups is irrelevant.  When those remote thoughts are applied to a whole group - which are their own unfounded beliefs - it equates to racial insensitivity, which produces latent racism and prejudices.  However, in the workforce it is discrimination.  That is a significant problem in our society today. 

Why do I bring this up?  As a Dallas Cowboys season ticket holder (technically I tag along with my brother), I find it troubling that Martellus Bennett  (TE), former and fellow Aggie (whoop!), decided to publish his thoughts on African Americans loving fried chicken. Although the intent may have humor, the effects only further enforce an unfounded stereotype. 

Here are the common stereotypes that exist today:

• Hispanic people are perceived as illegal aliens, illiterate English speakers, banditos, moochers off of free medical care, or gang members.
• All African Americans supposedly like watermelon and fried chicken. Remember the Fuzzy Zoeller comment on Tiger Woods after winning the masters or the infamous Jimmy the Greek comment that "The black is a better athlete to begin with because he's been bred to be that way."
• Italians are members of the Mafia, especially after "The Sopranos" spurned U.S. Supreme Court Justice Samuel Alito to complain about the stereotype after the show's run ended. 
• Asian are perceived as karate experts or intellectually superior.
• Native Americans are savages or medicine men.
• People from the Middle East are seen as terrorists or oil sheiks.
• Homosexuals as being effeminate.

If you think these generalization are unfounded, see these recent rebuttals or offensive stereotypes: 

• A well-researched and scholarly publication disproving many of the Latino stereotypes by my friend and colleague, Angel Reyes.  I challenge anyone questioning the motivation of Latinos to immigrate to the US to read his book, The Hispanic Heresy. 
• A New York tabloid published a cartoon portraying the drafter of the stimulus bill (President Obama?)  as a monkey. See the debate here. 
• A California mayor resigned after distributing a picture of watermelons on the White House lawn title "No Easter Egg Hunt This Year at the White House."

 In short, racial and ethnic stereotypes only create latent racism and prejudices.  Often times, employees are severally affected by these stereotypes.  As an employee, always be keen of how any stereotypes may be applied to you. 

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